Wednesday, November 22, 2017

Maryland High Court To Review Order To Investigate Hillary Clinton Attorneys

From the web page of the Maryland Court of Appeals is a notice granting certiorari

Attorney Grievance Commission, et al. v. Ty Clevenger- Case No. 63, September Term, 2017

Issues – Courts & Judicial Proceedings – 1) Did the trial court err in issuing a writ of mandamus directing Petitioner to investigate a complaint against three members of the Maryland Bar where exclusive jurisdiction over attorney disciplinary matters is vested in the Court of Appeals and Bar Counsel has discretion to determine whether an investigation is warranted? 2) Did the trial court err in vacating its prior order sealing the proceedings where Md. Rule 19-711 expressly provides that all attorney disciplinary complaints and investigations are confidential unless and until formal charges are brought against an attorney?

The underlying case is reported here by the Capital Gazette

An Anne Arundel County judge has ordered Maryland officials to investigate a complaint against three lawyers accused of deleting emails while representing former presidential candidate Hillary Clinton, overruling objections from lawyers representing the state.

Circuit Court Judge Paul F. Harris Jr. ruled Monday after a short hearing in Annapolis that the Attorney Grievance Commission and Office of Bar Counsel Maryland Office of Bar Counsel must investigate attorneys David E. Kendall, Cheryl D. Mills and Heather Samuelson. All three are licensed to practice in Maryland and could face professional sanctions if the commission determines there are guilty of misconduct.

Ty Clevenger, a Texas attorney who lives in New York, filed the complaint, saying they deleted thousands of emails related to a private email server Clinton used during her time as Secretary of State. He argued they engaged in misconduct by destroying evidence.

Clevenger said he is writing a book on political corruption and called the Clinton email scandal a case study of politically affiliated attorneys receiving preferential treatment. Clevenger’s complaint seeks to have them disbarred in Maryland. He unsuccessfully filed a similar complaint with the Washington, D.C., bar.

As should be apparent from the certified issues, this litigation calls into question the exercise of investigative discretion by bar disciplinary authorities. 

Notably, the Maryland Attorney General is defending the Bar Counsel and Attorney Grievance Commission.

My own view of this is that greater transparency in Maryland bar proceedings is necessary and appropriate. The public is entitled to know exactly how bar discipline works - or fails to work - and whether Bar Counsel exercises discretion in a responsible manner free from favoritism toward well-connected attorneys.

Thus, I believe that Bar Counsel's disposition of any complaint should be made available to the public.

Rules mandating confidentiality of dismissal letters (which nearly all jurisdictions have) are contrary to the public interest and should go the way of secret hearings (which were the norm thirty years ago). 

However, I believe that a Circuit Court judge has no authority to order Bar Counsel to do anything as attorney discipline is the exclusive province of the Court of Appeals. 

I also do not favor use of the bar's processes to advance an uninvolved person's political agenda and do not believe that such a complainant should have the same rights as an aggrieved client, counsel or judge. 

Further opinions to follow. Forewarned is forearmed.

Such issues rarely see the light of day. This case is worth watching. (Mike Frisch)

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